387 F. Supp. 3d 1264
D. Kan.2019Background
- Hernandez-Mendez, a Mexican citizen, was charged with illegal reentry under 8 U.S.C. § 1326 after a June 27, 2018 arrest; the indictment follows multiple prior illegal entries and removals.
- On Nov. 15, 2017 he was served a Form I-862 (Notice to Appear) that did not list a specific date/time for the initial hearing but included a Certificate of Service indicating oral notice of time/place; he later received a Notice of Hearing with a continued date and appeared.
- At an immigration hearing on Jan. 9, 2018 he conceded illegal reentry and accepted a removal order; he was removed Jan. 19, 2018.
- He reentered, was arrested Feb. 6, 2018, served a Form I-871 (reinstatement), pleaded guilty to illegal reentry, was sentenced, and deported Mar. 6, 2018.
- He reentered again and was arrested June 27, 2018, giving rise to the current indictment; he moved to dismiss arguing the Jan. 9 and Mar. 6 removal orders were void because the I-862 lacked time/place and thus the immigration court lacked jurisdiction.
- The government opposed; the court held a hearing and denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pereira requires an NTA to include time/place to vest immigration court subject-matter jurisdiction | United States: Regulatory rules (8 C.F.R.) and practice supply time/place and jurisdiction; Pereira is narrow and does not convert §1229(a) service defects into jurisdictional defects | Hernandez-Mendez: Pereira interpreted §1229(a) as definitional; an NTA missing time/place is invalid and divests the immigration court of jurisdiction | Court held Pereira was narrow; missing time/place in initial NTA does not, by itself, strip immigration court of subject-matter jurisdiction (denied motion) |
| Whether IIRIRA transitional language makes §1229(a) jurisdictional | United States: Subject-matter jurisdiction derives from statute/regulations (8 U.S.C. §§1229,1229c; 8 C.F.R.); transitional reference does not alter jurisdictional source | Hernandez-Mendez: Transitional rules saying NTAs confer jurisdiction mean §1229(a) is jurisdictional | Court held transitional language does not make §1229(a) a jurisdictional statute; jurisdiction is statutory/regulatory and not conferred by mere NTA form |
| Whether a defendant may collateral attack a reinstated removal order without satisfying 8 U.S.C. §1326(d)(1)-(3) when the underlying order purportedly lacked jurisdiction | United States: Collateral attacks on removal orders remain governed by §1326(d) requirements; Pereira does not abolish those requirements | Hernandez-Mendez: Because the Jan. 9 order was void for lack of jurisdiction, the reinstatement and later order cannot support prosecution | Court held defendant must meet §1326(d)(1)-(3) to collaterally attack a removal; Hernandez-Mendez did not meet that burden (motion denied) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (held an NTA that omits time and place does not trigger the stop-time rule under §1229b)
- Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) (concluded jurisdiction vests when required time information appears in a subsequent Notice of Hearing)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Pereira did not concern immigration court jurisdiction; regulatory definition governs jurisdiction)
- Ram v. I.N.S., 243 F.3d 510 (9th Cir. 2001) (discussed IIRIRA transitional rules)
- Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (U.S. 1982) (statutory text, not administrative acts, determines court jurisdiction)